R. v. Canning, 2012 ONCJ 359

Citation: R. v. Canning , 2012 ONCJ 359 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- JOSHUA CANNING REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with possession of a weapon for a purpose dangerous to the public peace, offence date July 6 2011. He defends the case on the basis that the weapons were possessed for a defensive purpose which he contends was not, in the circumstances, dangerous to the public peace. 2 .

The facts are simple: A police officer suspicious of drug activity detained the defendant and his passenger, who had just left the defendant’s car. Eventually the defendant’s vehicle was searched and the items in question – an expandable baton, brass knuckles and a pellet gun – were found. The defendant admitted to being in possession of these items, though he disputed the exact location where the police said they found them. 3 . The defendant told the police that the baton and brass knuckles were for his own protection because “people are after me”.

At trial he elaborated that in 2009 he was beaten up by the new boyfriend of his ex, a man named Grewal, and Grewal’s friends. Since then there were other instances of assaults, attempted assaults, and threatening conduct towards him by Grewal. He said that he acquired the brass knuckles about 6 months before and the baton about one month before he was arrested in July. His intention was to use them only to defend himself. 4 . As for the pellet gun, the defendant said that he had owned it since he was a child. It had been kept in his room but recently his parents insisted that it be removed from the house.

He told them that he would get rid of it but did not do so – he just kept it in the car. He had no plans to do anything with it and no purpose to use it at any time. 5 . I don’t believe the defendant (or his mother who also testified) about the gun. It is not believable that a child would be given a gun of this type as a toy and yet several years later the parents would become anxious about it and insist on its removal from the house. I

think he had the gun for the same purpose as he had the other items and though I am skeptical about his evidence I have at least areasonable doubt that he possessed these items for use in his own defence should he again be confronted by Grewal. The Defensive purpose “defence”: 6. For a brief period of time in Ontario, it was the law that possession of a weapon for the purposes of self defence was not a purposethat was dangerous to the public peace. In fact it was considered to be the opposite, that is, a possession designed to preserve the peace: Rv Thornton (ON CA), [1971] 2 CCC 2d 225 (Ont CA). 7.

However, in R v Nelson (1972) (ON CA), 8 CCC 2d 29 a five member panel of the Court of Appeal held that thedefendant’s subjective purpose of self defence was “but one factor” to consider and was not determinative of the issue.[1] Depending onthe circumstances, such possession, albeit for self defence, could still be possession for a purpose dangerous to the public peace. Suchcircumstances could include the time and place of the use or possession, the nature of the weapon and whether it’s use would constituteillegal (excessive) self defence.

In dissent, Jessup J.A. who had authored the Thornton decision expressed concern that if a solelydefensive purpose was only to be a “factor”, it would be impossible to determine whether any given set of circumstances should result ina conviction or an acquittal. (para 25). 8. Some answer to the problem flagged by the dissent in Nelson emerged in the case of R v Kerr (2004) 2004 SCC 44 , 185CCC 3d 1 (SCC). Kerr was charged with murder and possession of a weapon for a purpose dangerous arising from a knife fight betweenKerr and the deceased Garon, both inmates of a maximum security penitentiary.

The institution was a place where violence was rampantand nearly out of control. Like many or most inmates Kerr armed himself with a homemade knife on a daily basis for self protection. Butspecifically in relation to the murder, Kerr had received specific death threats for having disrespected Garon. At a time when he knew hewould likely have to come in contact with Garon, Kerr took the knife from its hiding place and concealed it on his person. When he andthe deceased met, they both produced and used their knives. Kerr inflicted a wound from which Garon died. 9.

The trial judge acquitted Kerr on both charges finding that he acted in self-defence in respect of the murder and that he possessedthe weapon for justifiable defensive purposes. He referred to Nelson and found that the other circumstances, specifically the absence ofany other alternative course of action, justified an acquittal. On appeal by the Crown, the Alberta Court of Appeal affirmed the acquittalon the murder charge but allowed the appeal and imposed a conviction on the weapon dangerous charge.

The Court said (para 15 SCCjudgment): …it could not endorse the trial judge’s suggestion that the prevalence of illegal concealed weapons in the prison system entitled Kerr topossess his weapons for self-defence. The Court regarded the trial judge’s reasoning as a recipe for anarchy in the prison setting,encouraging the proliferation of illegal homemade weapons, exacerbating an already violent atmosphere and making it more likely thatviolent outbursts would result in grievous bodily harm or death. 10.

On further appeal to the Supreme Court of Canada, the seven member Court restored the acquittal but was divided 2:2:2:1 in itsreasoning. All members of the Court cited and agreed with Nelson that a defensive purpose was not determinative of the issue and thequestion of whether the possession was for a purpose dangerous to the public peace depended on all of the circumstances. All membersof the Court agreed that in the circumstances immediately surrounding the fatal attack, the possession was not for a purpose dangerous tothe public peace.

Bastarache J. (Major J concurring) held that the crucial issue was whether the attack which the accused defendedagainst was avoidable, which issue in turn involved a consideration of location, atmosphere, nature of the threat, imminence of thedanger and actual use of the weapon (Para 38). Possession in a particular situation on a particular day to meet an immediate threat toone’s life with no real opportunity of avoiding it is not a threat to the public peace as such (Para 53) [2] 11.

The question arises whether Kerr has pronounced an exhaustive definition of justifiable defensive weapon possession or, morenarrowly, has engaged in a case-specific application of the “all the circumstances” test that it adopted from Nelson. While the question isnot free from doubt, I think it is the latter. The Court has explained why, in the specific circumstances of a violent prison environment,the possession of the knife by Kerr was not contrary to the public peace, notwithstanding the inarguable concerns voiced by the Court ofAppeal, quoted above, about escalation of violence in the prison setting. 12.

In my view the door is still open to recognize a wider latitude for possession of weapons for defensive purposes in other situationsthan the one dealt with in Kerr. One can readily envision situations – the young woman who has to walk home or take the subway late atnight; the home-owner who keeps a weapon at hand in case of a night-time intruder - where society would approve of - or at least tolerate- possession of some form of weapon for potential use against the possibility of violent attack, even though such attack is not specific orimminent.

It is significant that the Court in Kerr referred to the cases of R v Sulland (1982) (BC CA), 2 CCC 3d 68

(BCCA) and R v Proverbs (1983) (ON CA), 9 CCC 3d 249 (Ont.CA), both cases recognizing a “defence” in situationssimilar to those I have posited. Binnie J. specifically distinguished Sulland as being “entirely different” while Bastarache J cited bothcases with approval of at least some aspect of each decision. 13. It really comes back to the “all of the circumstances” test from Nelson and the words of the

section – is the possession for a purposedangerous to the public peace or, to put it in negative terms, can it be said that it is not contrary to the public interest in the maintenanceof peace and the control of violence and harm that the accused possess the particular weapon in the particular circumstances?

The answermay involve several considerations: Is the possessor of the weapon unacceptably vulnerable without it (woman walking home at night);Can the situation of vulnerability be avoided by alternative means; Is the weapon potentially lethal (Nelson) or is it “modest”: (jackknife as in Sulland): Is it almost certain to be used, if at all, only in defence (woman at night) or might it readily be used as an instrumentof aggression as well (gang members); Will its use in defence likely be excessive and potentially cause greater harm than the initial attack(Nelson)? 14.

Whether there is a wider scope for justifiable defensive possession beyond that applied in Kerr does not have to be answered in thiscase. Even if there is, it does not assist this defendant. The circumstances do not favour acquittal.

There was no imminent peril; anysignificant assault by Grewal was dated; alternative action was available - the defendant did not even report the initial incident to police;no weapon was involved in the Grewal assault and a response with weapons would be a considerable escalation in violence; two of theweapons found in the defendant’s possession are prohibited weapons, so designated due to their exceptionally dangerous and lethalcharacter; their use would be unlikely to fall within lawful self defence[3]. 15. The defendant is found guilty.

June 5 2012 B Duncan J A Wainright for the defendant F McCracken for the Crown [2] Lebel J (Arbour J concurring) analyzed the issue somewhat differently but ultimately came to much the same conclusion – that thekey point was necessity – whether the peril was imminent and unavoidable. The judgment of Fish J (Deschamps J concurring) turned onthe factual findings of the trial judge. Binnie J in dissent would have convicted based on Kerr’s routine daily possession prior to the timeimmediately preceding the fatal confrontation.